NEWGOLD ISSUER LIMITED (RF)

Transcription

1 THESE LISTING PARTICULARS CONTAIN IMPORTANT INFORMATION ABOUT NEWGOLD ISSUER LIMITED (RF) AND THE GOLD BULLION DEBENTURES AND SHOULD BE READ CAREFULLY (TOGETHER WITH THE PROSPECTUS DATED 27 OCTOBER 2004, AS AMENDED (THE 2004 PROSPECTUS ) BEFORE INVESTING. YOU ARE ADVISED TO READ AND UNDERSTAND THE CONTENTS OF THESE LISTING PARTICULARS AND THE 2004 PROSPECTUS WHICH SET FORTH INFORMATION THAT A PROSPECTIVE INVESTOR SHOULD KNOW AND CONSIDER BEFORE AN INVESTMENT DECISION IS TAKEN. IT SHOULD BE READ CAREFULLY AND RETAINED FOR FUTURE REFERENCE. IF YOU HAVE ANY QUESTIONS ABOUT THE CONTENTS OF THESE LISTING PARTICULARS YOU SHOULD CONSULT YOUR PROFESSIONAL ADVISOR. The directors of NewGold Issuer Limited (RF), whose names are set out on pages 17 to 19 of these Listing Particulars, accept responsibility for the contents of these Listing Particulars and, to the best of their knowledge and belief, and after making reasonable enquiries, the information contained in this document is in accordance with the facts and that these Listing Particulars make no omission likely to affect the import of information. Prospective purchasers of any Gold Bullion Debenture should ensure that they fully understand the nature of Gold Bullion Debentures and the extent of their exposure to risks, and that they consider the suitability of Gold Bullion Debentures as an investment in the light of their own circumstances and financial position. NEWGOLD ISSUER LIMITED (RF) (Incorporated in the Republic of South Africa on 27 May 2004) (Registration number 2004/014119/06) ( NewGold ) Abbreviated name: NewGold JSE Symbol: GLD SEM Symbol: NGLD.N0001 ISIN Code: ZAE LISTING PARTICULARS relating to the Secondary Listing of Gold Bullion Debentures issued by NewGold (which is already listed on the Johannesburg Stock Exchange ( JSE ) on the Stock Exchange of Mauritius Ltd ( SEM ) with effect from the commencement of trading on 26 th July An application has been made to the SEM for the listing of 400, 000 Gold Bullion Debentures at the price to be determined pursuant to the calculation at page 24 and on first day of trading, 400, 000 Gold Debentures will be made available for trading. Originator JSE Sponsor SEM Executing Broker Mauritian Legal Advisor Date: 12 th July 2013 Listing Particulars Number: LEC/I/02/2013 1

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3 TABLE OF CONTENTS 1. Corporate details 4 2. Overview 6 3. Interpretation 8 4. Description of structure and Gold Bullion Debentures General Regulatory considerations Risk factors Additional information 36 Annexure A Independent auditor s report on the summarised historical financial information 43 of NewGold Annexure B Summarised historical financial information of NewGold 46 Annexure C Issues and redemptions of Gold Bullion Debentures 48 Annexure D Debenture Conditions 55 Page 3

4 1. CORPORATE DETAILS Company NewGold Issuer Limited (RF) Registration number: 2004/014119/06 7th Floor Absa Towers West 15 Troye Street Johannesburg, South Africa 2001 (PO Box 5438, Johannesburg, 2000), South Africa Tel: Contact person: Judith Chinkumbi Manager NewGold Managers (Proprietary) Limited Registration number: 2004/007543/07 7th Floor Absa Towers West 15 Troye Street Johannesburg, South Africa 2001 (Private Bag X10056, Sandton, 2146), South Africa Tel: Contact person: Michael Mgwaba Mauritian Legal Advisor BLC Chambers 5 th Floor, Unicorn Centre 18N Frère Félix de Valois Street Port Louis Mauritius Tel: Contact person: Iqbal Rajahbalee JSE Sponsor and Corporate Adviser Absa Capital (the investment banking division of Absa Bank Limited affiliated with Barclays Capital) Registration number: 1986/004794/06 15 Alice Lane Sandton 2196 South Africa Tel: Contact person: Marian Gaylard Authorised Representative and SEM Executing Broker Axys Stockbroking Ltd Bowen Square Dr Ferriere Street Port Louis Fax No: Attention: The Manager NewGold Owner Trust The NewGold Issuer Trust Master's reference number: IT8350/04 First Floor 32 Fricker Road Illovo Johannesburg South Africa JSE and SEM Transfer Secretary Computershare Investor Services (Proprietary) Limited Registration number: 2004/003647/07 70 Marshall Street 2001 Marshalltown, 2107, South Africa Tel: Contact person: Charles Lourens Auditor Ernst & Young Inc. Registration number: 2005/002308/21 Wanderers Office Park 52 Corlett Drive Illovo Secretary Absa Secretarial Services (Proprietary) Limited Registration number: 1973/014516/07 7th Floor Absa Towers West 15 Troye Street Johannesburg, South Africa 2001 (PO Box 7735, Johannesburg, 2000), South Africa Tel: Contact person: Judith Chikumbi SEM Securities Depository Central Depository & Settlement Co. Ltd 4th Floor, One Cathedral Square Building 16, Jules Koenig Street Port Louis Mauritius 4

5 2196 South Africa (Private Bag X14, Northlands, 2116) Tel:

6 2. OVERVIEW The following is a summary of the terms and conditions of an investment in the NewGold Gold Bullion Debentures. This overview should be read in conjunction with the full text of these Listing Particulars from which it is derived. Words used in this section shall have the same meaning as defined on pages 8 to 15 of these Listing Particulars, unless they are defined in this section or the use thereof is clearly inappropriate from the context. NewGold is a special purpose company that was established in South Africa on 27 May 2004 under the name Lexpub 39 Investments Limited and listed on the JSE with effect from 2 November NewGold is an Exchange Traded Fund which enables investors to invest in a debt instrument, the value of which tracks the price of a commodity. The NewGold Exchange Traded Fund currently tracks the price of Gold Bullion. It does so by: issuing Gold Bullion Debentures on the terms and subject to the conditions more fully described in these Listing Particulars, as read with the 2004 Prospectus, each of which references and is linked to a specified quantity of Gold Bullion (the Reference Quantity ) and the value of which (both upon first issue and subsequent redemption) is equal to the value of the Reference Quantity of Gold Bullion at the applicable time; using the proceeds of the issue of each Gold Bullion Debenture to acquire the Reference Quantity of Gold Bullion. The Gold Bullion so acquired is in the form of London Good Delivery Bars, which Gold Bullion is retained in safe custody with the Custodian pursuant to the Custody Agreement; and allowing the holders of Gold Bullion Debentures to either trade same in the Exchange Traded Funds sector of the JSE or, following the proposed Secondary Listing, on the SEM. In order to meet the requirements of the regulatory environment in which NewGold operates, the debt instruments issued by NewGold have been structured such that they do not give a Debenture Holder any ownership or title to any Gold Bullion held by NewGold. Further, so as to comply with the regulatory framework in which it will operate, NewGold has: obtained the approval of the Exchange Control Department of the South African Reserve Bank to buy, borrow, lend and sell Gold Bullion as contemplated in Exchange Control Regulation 2 and has been exempted from Exchange Control Regulation 5 and the prohibitions contained in the South African Precious Metals Act; obtained the approval of the JSE for the primary listing of the Gold Bullion Debentures on the JSE and issued the 2004 Prospectus in connection therewith; Obtained the approval of the SEM for the listing of the Gold Bullion Debentures on the Official List of the SEM; and In order to fund the costs of maintaining the corporate status of NewGold and to meet the liabilities of NewGold in respect of management, marketing and custodial fees (as described in these Listing Particulars) NewGold, at fixed monthly intervals, sells a fixed, prescribed quantity of Gold Bullion in order to meet the Monthly Gold Sales Charge. The quantity of Gold Bullion so sold effectively reduces the Reference Quantity of Gold Bullion in accordance with the formula set out on page 13. NewGold, being a special purpose company, has no employees and the management of NewGold is outsourced to the Manager which is another special purpose company, NewGold Managers (Proprietary) Limited. Investing in the Gold Bullion Debentures involves risks. See the section entitled Risk Factors beginning on page 34 of these Listing Particulars for a description for some of the risks inherent therein. 6

7 The Gold Bullion Debentures issued pursuant to the Secondary Listing on SEM will rank pari passu with (i) each other and (ii) all other Gold Bullion Debentures already in issue prior to the Secondary Listing on SEM. NewGold Gold Bullion Debenture is open-ended in nature, is issued over an asset and currently tracks the price of Gold Bullion and is fully covered at all times. Rationale for listing of NewGold ETF on the Stock Exchange of Mauritius (SEM) Absa Bank Limited, the largest retail bank in South Africa and a member of the Barclays Group, originates the NewGold Exchange Traded Fund (ETF), issued by the NewGold Issuer Limited (RF). NewGold ETF is the largest ETF in South Africa and Africa and one of only two commodity backed ETFs listed in Africa (the second being the NewPlat ETF, a platinum-backed ETF, also issued by the NewGold Issuer Limited (RF)). As part of its objective to assist the development of the ETF market in Africa and expand the investor base for its ETFs, Absa Bank identified an opportunity to list its flagship ETF, the NewGold ETF, on select African stock exchanges. At present, NewGold is listed on the Johannesburg Stock Exchange, as well on exchanges in Botswana, Nigeria and Ghana. Absa Bank believes that listing of the NewGold ETF on one of the most dynamic stock exchanges on the continent, the SEM, will bring benefits to its ETF franchise, to Mauritian investors who for the first time will get access to gold bullion investment through a SEM-listed ETF, and to the SEM, as the NewGold listing will open the doors for exchange traded funds in the Mauritian market. 7

8 3. INTERPRETATION In these Listing Particulars, unless the context clearly indicates a contrary intention, the following expressions have the following meanings: 2004 Prospectus the prospectus issued on 27 October 2004 in respect of the initial offer and listing on the JSE of Gold Bullion Debentures (as amended and supplemented from time to time), copies of which may be obtained from the offices of the Sponsoring Broker; Absa Absa Capital Accounting Records Allocated Bullion Account Absa Bank Limited acting through its Corporate and Investment Banking Division (registration number 1986/004794/06), a public company duly incorporated in accordance with the laws of South Africa and registered as a bank in terms of the South African Banks Act, 94 of 1990; the Absa Capital division of Absa; the books of account and accounting systems of NewGold; an allocated bullion account held with the Custodian to which the Gold Bullion acquired by NewGold is credited; Applicable Laws any law applicable to NewGold, including the common law, statutes and sub-ordinate legislation; any regulation, directive, guideline, practice note, notice, ordinance, policy, by-law, order or any other enactment or legislative measure or decision of government (including local and provincial government) or any political sub-division thereof, a municipality or a South African statutory, supervisory or regulatory body, enforcement committee, self-regulatory organisation (including a stock exchange) or other competent authority, which is applicable to NewGold; a decree, treaty or multinational convention to which South Africa is a party; any industry code, policy or standard applicable to NewGold; the listings requirements or rules of a stock exchange on which any Gold Debenture may be listed from time to time, whether or not such stock exchange is located in South Africa; the King Report on Governance for South Africa, 2009, and the King code of Governance Principles, 2009 (or any report or code which replaces these) and any other code of corporate governance applicable to the Company; accounting standards, such as IFRS or GAAP, applicable to NewGold; any court order, judgements, decree or other decision of a competent South African court or other South African dispute resolution forum; Applicable Procedures Auditors Block the rules and operating procedures for the time being of the JSE, Strate and/or the Strate settlement agents, as the case may be; the statutory auditors of NewGold for the time being, being Ernst and Young Inc. as at the date of the Listing Particulars, or such other internationally recognised auditing firm appointed by NewGold from time to time; 400,000 Gold Bullion Debentures; 8

9 Certificated Debenture Conditions to Issue Conditions to Redemption CDS CDS Rules CSD Custodian Custody Agreement a Gold Bullion Debenture that has not been Dematerialised, title to which is represented by a physical document of title; the conditions which must be fulfilled prior to the issue of any Gold Bullion Debentures, being the Conditions to Issue as set out in the 2004 Prospectus; the conditions which must be fulfilled prior to a Debenture Holder being entitled to redeem a Gold Bullion Debenture in accordance with the provision of condition 7 of the Debenture Conditions; Central Depository & Settlement Co. Ltd established pursuant to the Securities (Central Depository, Clearing and Settlement) Act 1996 with the registered address referred to below its name on page 4; the rules of the CDS from time to time and for the time being; central securities depositary for the JSE; Barclays Bank PLC (company number ), incorporated under the laws of England and Wales, or such other custodian as may be appointed by NewGold from time to time; the written custody agreement (as amended, novated and/or replaced from time to time) concluded between NewGold and the Custodian, in terms of which, inter alia, the Custodian is appointed as custodian of the Gold Bullion of NewGold from time to time; DP Debenture Conditions Debenture Holder Dematerialised Dematerialised Debenture ETF Event of Default a depository participant or the holder of an investor account duly accepted by the CDS pursuant to the CDS Rules; the terms and conditions of the Gold Bullion Debentures (as amended from time to time) attached as Annexure D, subject to and in accordance with which the Gold Bullion Debentures are issued; in relation to any Gold Bullion Debenture, the person or entity whose name is entered in the Register as the holder of such Gold Bullion Debenture; the process whereby physical debenture certificates and other documents of title are replaced with electronic records evidencing ownership of Gold Bullion Debentures for the purposes of the CDS Rules; a Gold Bullion Debenture that has been Dematerialised; the exchange traded fund established by the Transaction Documents and to be operated by NewGold, as described in these Listing Particulars; the occurrence of any of the following events: (a) NewGold being wound up, liquidated (in any case whether provisional or final) and/or placed under business rescue, provided that an offer of compromise on terms and conditions approved by the Debenture Holders by a Special Resolution to that effect and in circumstances where NewGold is solvent shall not constitute a winding-up of NewGold for purposes of this (a); or (b) NewGold having any application or other proceedings brought against it, in terms of which NewGold is sought to be wound up or placed in liquidation (whether provisional or final) or business rescue; or 9

10 (c) (d) (e) (f) subject to the proviso in (a) which shall apply mutatis mutandis, NewGold committing any act which is or would, if NewGold were a natural person, be an act of insolvency as defined in the South African Insolvency Act, 24 of 1936; or subject to the proviso in (a) which shall apply mutatis mutandis, NewGold compromising or attempting to compromise with or attempting to defer payment of debt owing by it to its creditors generally; or subject to the proviso in (a) which shall apply mutatis mutandis, any procedural steps being taken by NewGold with a view to effecting a compromise or arrangement with its creditors generally; or NewGold ceasing to carry on NewGold s Business in a normal and regular manner; Exchange Control Regulations Fine Troy and Troy Form of Proxy FSC Good Delivery Standard Gold Bullion Gold Bullion Debenture Gold Bullion Sale Agreement Initial Beneficiary Initial Quantity Issue Date Issue Price the Exchange Control Regulations, promulgated in terms of section 9 of the South African Currency and Exchanges Act, 9 of 1933; These relate to the trading unit for gold, which is one fine troy ounce ( fine ) meaning pure gold irrespective of the purity of a particular bar).the conversion factors between fine troy ounces and metric used by the London Bullion Market Association are: (i) 1 fine troy ounce = grams; and (ii) 1 kilogram = fine troy ounces; an instrument in writing signed by a Debenture Holder holding a Certificated Debenture or, in the case of a Debenture Holder holding a Certificated Debenture which is a company or other juristic person, signed on its behalf by a Representative of the company or juristic person appointing a Proxy; The Financial Services Commission of Mauritius the refining standard and weights set by the LBMA for gold bars as set out in The Good Delivery Rules for Gold and Silver Bars published by the LBMA from time to time; physical unwrought gold in the form of London Good Delivery Bars; a gold bullion debenture issued by NewGold in accordance with the Debenture Conditions. In respect of the Secondary Listing on the SEM and for Mauritius purposes, the Gold Bullion Debenture will be referred to as NewGold Security and accordingly both the terms Gold Bullion Debenture and NewGold Security shall bear the same meaning and may be used interchangeably; the sale agreement deemed to have been concluded between NewGold and a Qualifying Debenture Holder pursuant to the exercise by such Qualifying Debenture Holder of a Gold Option, as set out in condition 8 of the Debenture Conditions; the initial capital and income beneficiary of the NewGold Owner Trust, namely Absa; one-hundredth of one fine troy ounce of Gold Bullion (being the quantity of Gold Bullion to which the first Gold Bullion Debentures issued by NewGold were referenced and linked as at 2 November 2004); in relation to a Gold Bullion Debenture, the date of actual issue thereof; in relation to each Gold Bullion Debenture, the price (expressed in Rand) 10

11 at which such Gold Bullion Debenture is issued on the Issue Date thereof, being an amount calculated with reference to the value of the Reference Quantity of Gold Bullion linked to that Gold Bullion Debenture as at the Issue Date thereof and published on SENS; JSE JSE Listings Requirements Last Practicable Date LBMA Licensed Dealing Member Listing Particulars London Good Delivery Bar London PM Fix Management Agreement JSE Limited (Registration number 2005/ /06), a public limited liability company incorporated in accordance with the company laws of South Africa and licensed as an exchange under the South African Security Services Act; the listings requirements of the JSE from time to time and for the time being, as published by the JSE; the last practicable date prior to finalisation of these Listing Particulars, being 30 th June 2013 the London Bullion Market Association; a duly authorised trading member of the SEM; Means the present document (together with the annexures attached hereto) which has been prepared in respect of the Secondary Listing on the SEM of the Gold Bullion Debentures and which supplements the 2004 Prospectus and is to be construed as a supplemental prospectus for the purposes of Annexure D; the requirements with which a gold bar should conform according to the Good Delivery Standard of the LBMA, being the following: in respect of weight: the minimum gold content should be 350 fine troy ounces (approximately 10.9kg); the maximum gold content should be 430 fine troy ounces (approximately 13,4kg); and o the gross weight of a bar should be expressed in fine troy ounces, in multiples of 0.025, rounded down to the nearest of a troy ounce; in respect of dimension: length (Top): 250 mm +/- 40 mm Undercut *: 7% to 15% o width (Top): 70 mm +/- 15 mm Undercut *: 15% to 30% height: 35 mm +/- 10 mm; The undercut refers to the degree of slope on the side and ends of the bar and is calculated by deducting the dimension of the bottom edge of the bar from the dimension of the top edge and dividing the result by the top edge dimension multiplied by one hundred to obtain the percentage undercut. in respect of fineness, the minimum acceptable fineness is parts per thousand fine gold and lastly in respect of marks, it should contain: o the serial number; the assay stamp of the refiner; the fineness (to four significant figures); and the year of manufacture (expressed in four digits); the afternoon session of the twice daily fix of the price of an ounce of gold which starts at 15:00 (London time) and is performed in London by the five members of the London gold fix; the written management agreement (as amended, novated and/or replaced from time to time) concluded between NewGold and the Manager dated 15 October 2004, in terms of which, inter alia, the Manager is appointed 11

12 by NewGold to manage and administer the affairs of NewGold and NewGold s Business and to advise NewGold in relation to the conduct of NewGold s Business; Manager NewGold Managers (Proprietary) Limited (registration number 2004/007543/07), a private company duly incorporated in accordance with the laws of the RSA, or such other manager of NewGold as may be appointed by NewGold in terms of the Management Agreement; Mauritius Mauritius Business Day Monthly Gold Sales Charge NAV NewGold" NewGold s Board NewGold s Business NewGold Owner Trust NewGold Owner Trust Deed Nominated Bullion Account Originator Proxy The Republic of Mauritius; a day (other than a Saturday, Sunday or official public holiday) on which commercial banks are generally open for business in Mauritius; an amount sufficient inter alia, to meet the monthly fees and expenses of NewGold and to declare and pay dividends to NewGold s shareholders from time to time, which are funded through the sale of Gold Bullion. The amount currently thought to be sufficient to meet such fees and expenses and to declare and pay dividends to the NewGold shareholders is 0.40% per annum of the Gold Bullion held by NewGold from time to time in excess of 430 fine troy ounces. The Monthly Gold Sales Charge may be increased at any time, provided the requisite notice period referred to on page 22 of these Listing Particulars is given; the Net Asset Value of NewGold; NewGold Issuer Limited (RF) (formerly Lexpub 39 Investments Limited) (registration number 2004/014119/06), a public company duly incorporated in accordance with the laws of the RSA; the board of directors of NewGold from time to time; the business conducted by NewGold from time to time, being, inter alia, establishing and operating exchange traded funds listed on the exchange operated by the JSE and one or more secondary or dual listings on such other exchanges as the Company may select from time to time in relation to the Debentures, the acquisition and holding of Gold Bullion and the sale of Gold Bullion as described or envisaged in these Listing Particulars and the Transaction Documents; The NewGold Owner Trust, a trust inter vivos duly established in terms of the NewGold Owner Trust Deed and registered with the Master of the High Court of South Africa (North Gauteng High Court) under reference number IT8350/04, which NewGold Owner Trust has been established with the sole purpose of beneficially holding all of the shares in the issued share capital of NewGold; the written trust deed (as amended, novated and/or replaced from time to time) concluded by Absa (in its capacity as donor) and Maitland Group South Africa Limited (in its capacity as trustee) on 7 September 2004, in terms of which the NewGold Owner Trust is established; the relevant Allocated Bullion Account or Unallocated Bullion Account of a Qualifying Debenture Holder into which the Sale Bullion to be delivered to such Qualifying Debenture Holder pursuant to the exercise of a Gold Option shall be credited; Absa Capital a person duly appointed under a Form of Proxy to act for and on behalf of 12

13 a Debenture Holder holding a Certified Debenture in connection with any meeting or proposed meeting of Debenture Holders; Rand or ZAR Redemption Date Redemption Fee Redemption Value Reference Quantity the legal currency of the RSA; in relation to a Gold Bullion Debenture, the date on which such Gold Bullion Debenture is actually redeemed in accordance with the Debenture Conditions; the fee payable by a Debenture Holder on the redemption of a Gold Bullion Debenture held by it, being an amount equivalent to 0.15% of the Redemption Value (excluding VAT payable thereon, if any) of such Gold Bullion Debenture; in relation to a Gold Bullion Debenture and as at the Redemption Date thereof, an amount equal to the Sale Proceeds realised or that would have been realised by NewGold pursuant to a sale of NewGold of the Reference Quantity of Gold Bullion to which such Gold Bullion Debenture is linked; in relation to a Gold Bullion Debenture, the specific quantity of Gold Bullion to which that Gold Bullion Debenture is referenced and linked as at any given point in time, being a quantity calculated in accordance with the following formula: IQ RQ R D where: RQ = the Reference Quantity to be determined, expressed in fine troy ounces; IQ = the Initial Quantity; D = the number of days between 4 November 2004 (being the Issue Date of the first Gold Bullion Debenture to have been issued) and the Redemption Date of the Gold Bullion Debenture in respect of which the Reference Quantity is to be determined; and 1 R 1 L 1/365 1 x 365 where for purposes of determining R: L = the Monthly Gold Sales Charge, which Monthly Gold Sales Charge accrues daily and will be deducted monthly in arrears; Register Representative Residual Beneficiary the register of Gold Bullion Debentures, which register shall, in the case of JSE listed Dematerialised Debentures, be kept by Strate, in the case of SEM listed debentures, be kept by CDS; a person authorised by a resolution of a corporate Debenture Holder s directors or other governing body to act as its representative in connection with any meeting or proposed meeting of Debenture Holders; the residual beneficiary of the NewGold Owner Trust, namely The Nelson Mandela Children s Fund (Non-Profit Organisation, registration 13

14 number ); Rupee or MUR Sale Proceeds The legal currency of Mauritius; the proceeds realised by NewGold from the sale of Gold Bullion in the spot market in the London PM Fix on redemption of all or any of the Gold Bullion Debentures issued by it, less the costs of arranging and completing such sale, storage costs, insurance costs and all applicable Taxation payable in connection with such sale; Securities Act 2005 SEM Secondary Listing Securities Services Act SEM Executing Broker SEM Listing Rules SENS Settlement Agent South Africa or RSA South African Business Day South African Precious Metals Act Special Resolution Strate The Securities Act no. 22 of 2005 of Mauritius The Stock Exchange of Mauritius Ltd the secondary listing of NewGold on the SEM with effect from commencement of trading on 26 th July 2013; the South African Securities Services Act 36 of 2004 (as amended), or any legislation which replaces it; Axys Stockbroking Ltd or such other entity which is appointed by the NewGold from time to time; the Listing Rules of the SEM from time to time and for the time being; the Securities Exchange News Service, an office of the JSE; a DP approved in terms of the Applicable Procedures to perform electronic net settlements of both funds and scrip on behalf of market participants in Mauritius; the Republic of South Africa; a day (other than a Saturday, Sunday or official public holiday within the meaning of the South African Public Holidays Act, 36 of 1994) on which commercial banks are generally open to settle payments in Rand in Johannesburg; the Precious Metals Act No. 37 of 2005 of South Africa; a resolution passed at a properly constituted meeting of Debenture Holders which shall be required to be adopted with the support of at least 75% of the voting rights held by the Debenture Holders exercised on the resolution presented at that meeting (either present in person or able to participate in the meeting by electronic communication, or to be represented by a Proxy who is present in person or able to participate in the meeting by electronic communication, and voting whether on a show of hands or on a poll); Strate Ltd, the licensed CSD for the electronic settlement of financial instruments in South Africa; Taxation all taxes, duties, assessments, levies and/or governmental charges (including any penalty in respect thereof and interest thereon) payable to any governmental authority or any political sub-division thereof or any authority or agency therein or thereof having the power to tax, including 14

15 income tax, VAT and regional services levies; Trading Day Transfer Form Transaction Documents for purposes of redemption of Gold Bullion Debentures: listed on the JSE, a day on which trading takes place on the JSE; and listed on the SEM, a day on which trading takes place on the JSE and the SEM; and for all other purposes, a day on which trading takes place on the JSE and the SEM; the written form for transfer of any Gold Bullion Debenture evidenced by a certificate in a form approved by the Transfer Secretaries and signed by the transferor and the transferee; collectively: the Debenture Conditions; the Management Agreement; the Custody Agreement; the NewGold Owner Trust Deed; the memorandum of incorporation of NewGold; and the 2004 Prospectus, all as amended, novated and/or replaced from time to time; Transfer Secretaries in respect of JSE and SEM listed Gold Bullion Debentures, Computershare, Investor Services (Proprietary) Limited in its capacity as such, whose address is at 70 Marshall Street, Johannesburg, 2001 (PO Box 61051, Marshalltown, 2107) ; Trustee United States Dollars VAT World Gold Council the trustee for the time being of the NewGold Owner Trust, currently Maitland Group South Africa Limited; the legal currency of the United States of America; value-added tax levied in terms of the South African Value-Added Tax Act 89 of 1991; and a Swiss based not-for-profit organisation formed and funded by the world s leading gold mining companies with the aim of stimulating and maximising the demand for and holding of gold by consumers. All references in these Listing Particulars to any Act, regulation, or other statutory provision shall be a reference to such Act, regulation or other statutory provision as amended and/or re-promulgated from time to time and for the time being. All expressions in these Listing Particulars which denote the singular shall include the plural, any gender shall include the other genders, and a natural person shall include artificial or juristic persons and vice versa. Capitalised terms used in these Listing Particulars but not defined herein shall have the meanings assigned to them in the 2004 Prospectus. In the event of there being any conflict between the terms of these Listing Particulars and any of the terms of Annexure D, the terms as defined in Annexure D of these Listing Particulars shall prevail. 15

16 4. DESCRIPTION OF STRUCTURE AND GOLD BULLION DEBENTURES Words used in this section shall have the same meaning as defined on pages 8 to 15 of these Listing Particulars and in the Debenture Conditions, unless they are defined in this section or the use thereof is clearly inappropriate from the context. The following description of structure and of the Gold Bullion Debentures consists of a summary of the ETF and of the Debenture Conditions. As such, it does not purport to be complete. Accordingly, this summary is qualified in its entirety by reference to the Transaction Documents (which are available for inspection at the places and during the times described in these Listing Particulars) and the Debenture Conditions. 1. Introduction and Schematic Diagram NewGold uses the proceeds of the issue of Gold Bullion Debentures to acquire Gold Bullion. The Gold Bullion acquired and held by NewGold is held in safe custody by the Custodian for, on behalf and in the name of, NewGold in terms of the Custody Agreement. NewGold funds and defrays its fees and expenses and pays dividends to its shareholder, The NewGold Owner Trust, by selling Gold Bullion at monthly intervals, thereby reducing the Reference Quantity of Gold Bullion to which each Gold Bullion Debenture is linked by a pro rata portion of the Monthly Gold Sales Charge. NewGold, being a special purpose company, does not have any employees. Accordingly, in terms of the Management Agreement, the Manager manages and administers the business and affairs of NewGold and advises NewGold in relation to the conduct of NewGold s Business. The diagram below describes, in schematic form, the various entities and relationships referred to above. Absa Bank Limited The NewGold Owner Trust 49% NewGold Managers (Proprietary) Limited 51% 100% (beneficially held) Management Agreement and payment of agreed management fee NewGold purchases Gold Bullion and concludes the Custody Agreement in relation thereto NewGold Issuer Limited (RF) Custodian Gold Bullion Debentures (tracking the value of Gold Bullion and listed on the JSE and SEM) Debenture Holders 2. NewGold Owner Trust NewGold is a subsidiary of the NewGold Owner Trust. The NewGold Owner Trust is an independent trust which was specifically established in the RSA on 10 September 2004 in terms of the NewGold Owner Trust Deed with the sole purpose of beneficially holding the entire issued share capital of NewGold. The NewGold Owner Trust is the registered and beneficial owner of 94 ordinary par value 16

17 shares of ZAR1 each in the issued share capital of NewGold (constituting 94% of the issued shares in NewGold) and is the beneficial (but not registered) owner of the remaining 6 ordinary par value shares of ZAR1 each in the issued share capital of NewGold (such balance constituting the remaining 6% of the issued shares in NewGold). The NewGold Owner Trust is registered with the Master of the South Gauteng High Court under reference number IT8350/04. The principal place of business of the NewGold Owner Trust is at First Floor, 32 Fricker Road, Illovo Boulevard, Johannesburg. The trustee of the NewGold Owner Trust is currently Maitland Group South Africa Limited. The Initial Beneficiary is a discretionary capital and income beneficiary. The Trustee is under no obligation to make any award to the Initial Beneficiary but shall consider (without being under any obligation to do so), making awards to the Initial Beneficiary on the last South African Business Day of each calendar quarter. The person appointed as the Trustee may be disqualified from acting as such in certain circumstances including if the Initial Beneficiary in its discretion, so determines. Upon the winding-up of the NewGold Owner Trust, after all of the liabilities of the NewGold Owner Trust have been discharged, the Residual Beneficiary shall be entitled to the remainder of the assets of the NewGold Owner Trust. 3. NewGold NewGold is a special purpose, public company having a share capital, which was incorporated in the RSA in terms of the South African Companies Act on 27 May 2004 for the specific purpose of conducting the ETF. NewGold is ring-fenced and insolvency remote in that the memorandum incorporation of NewGold limit NewGold s legal capacity to conduct any business or incur any liability other than that permitted in terms of the Transaction Documents, without the prior consent of the Debenture Holders by an Special Resolution to that effect. NewGold has an authorised share capital of 1,000 ordinary par value shares of ZAR1 each, of which 100 ordinary par value shares of ZAR1 each have been issued. As set out above, all of these issued shares are beneficially owned by the NewGold Owner Trust, although 6 of such issued shares are held by nominees. Each such nominee has executed a declaration of trust acknowledging that he holds such share on behalf of and for the benefit of the NewGold Owner Trust, that he will not be entitled to deal or otherwise transact with such share without the prior written consent of the NewGold Owner Trust and that any benefit which he may receive as a result of a being a shareholder of NewGold will be passed on to the NewGold Owner Trust. In terms of the Transaction Documents, NewGold is entitled to issue Gold Bullion Debentures at any time provided that the Conditions of Issue have been fulfilled. In terms of the memorandum of incorporation of NewGold, NewGold s Board must at all times comprise at least three independent directors. These directors are appointed (and from time to time replaced) by the NewGold Owner Trust. All directors appointed by the NewGold Owner Trust must be independent of the Originator of the ETF, Absa Capital. A fourth director of NewGold may be appointed (and from time to time replaced) by Absa Capital. The directors are appointed in terms of the provisions of the memorandum of incorporation of NewGold. In addition, the memorandum of incorporation of NewGold require that each and every resolution passed by NewGold s Board must be passed with the approval of at least 2 independent directors and that no meeting of NewGold s Board will be quorate unless at least 2 independent directors are present. The memorandum of incorporation of NewGold further does not require a director or an alternate director to hold qualifying shares in NewGold. The directors are not paid any remuneration by NewGold for their services as such but are paid a fee by the Manager. The full names, ages, addresses and occupations of the directors of NewGold are set out below: 3.1. Edward Montagu Southey (Chairman) age: 71; nationality: South Africa; 17

18 qualifications: BA LLB; business address: 10 Fricker Road, Illovo Boulevard, Johannesburg, 2196; occupation and experience: Practising Attorney; directorships/partnerships in the five years preceding the date of these Listing Particulars: Accelerator Fund 1 (Proprietary) Limited, Accelerator Fund 1 Security SPV (Proprietary) Limited, Accelerator Fund 2 (Proprietary) Limited, Accelerator Fund 2 Security SPV (Pty) Limited, Accelerator Fund 3 (Proprietary) Limited, Accelerator Fund 3 Security SPV (Proprietary) Limited, Assore Limited, Attorneys Insurance Indemnity Fund, Auto Series Investments Ltd, Blue Granite Investments No. 1 (Proprietary) Limited, Blue Granite Investments No. 2 (Proprietary) Limited, Blue Granite Investments No. 3 (Proprietary) Limited, Blue Granite Investments No. 4 (Proprietary) Limited, Blue Granite Investments No. 5 (Proprietary) Limited, Blue Granite No. 1 Security SPV (Proprietary) Limited, Blue Granite No. 2 Security SPV (Proprietary) Limited, Blue Granite No. 3 Security SPV (Proprietary) Limited, Blue Granite No. 4 Security SPV (Proprietary) Limited, Collaterised Auto Receivables Securitisation 1 Guarantor (Proprietary) Limited, DHB Investments (Proprietary) Limited, Eagle Newco Number One (Proprietary) Limited, Eagle Security Co Number One (Proprietary) Limited, Edu Loan Capital Proprietary Limited, Epoch Investment Holdings Limited, Epoch Two Investment Holdings Limited, Fintech Lease Rentals (Proprietary) Limited, FNB Retail Equities Nominees (Pty) Limited, Grainflow Investments Limited, Grayston Conduit 1 (Pty) Ltd, Home Obligors Mortgage Enhanced Securities (Pty) Ltd, Ltd, Indwa Investments Limited, ivuzi Investments Limited, Lexshell 596 Investments (Pty) Ltd, Lexshell 624 Investments (Pty) Ltd, Main Street 65 (Pty) Ltd, Main Street 220 (Pty) Ltd, Main Street 367 (Pty) Limited, Main Street 766 (Pty) Ltd Main Street 728 (Pty) Ltd, Main Street 789 (Pty) Ltd, Maitland Executors Limited, Maitland Trust Limited, Maitland Trust (KZN) (Proprietary) Limited,Maitland FS Holdings Proprietary Limited, MBT Channel Capital (Pty) Ltd, Micawber 388 (Pty) Ltd, Mondi SSC (SA) (Proprietary) Limited, NBC Future Guard Security SPV (Proprietary) Limited, Newgold Issuer Limited (RF), Newgold Managers (Proprietary) Limited,Newfunds Proprietary Limited, Nqaba Finance 1 (Proprietary) Limited, Private Commercial Mortgages (Proprietary) Limited, Private Mortgages 1 (Proprietary) Limited, Private Mortgages 2 (Proprietary) Limited, Private Mortgages 3 (Proprietary) Limited, Procul Limited, Philco One Hundred and Twenty Eight (Proprietary) Limited, Sanlam Home Loans 101 Security SPV (Proprietary) Limited, Sanlam Home Loans 102 (Proprietary) Limited, Sanlam Home Loans 102 Security SPV (Proprietary) Limited, Sanlam Home Loans 103 (Proprietary) Limited, Sanlam Home Loans 103 Security SPV (Proprietary) Limited, Schindler Lifts SA (Proprietary) Limited, Security SPV 1 (Proprietary) Limited Security SPV 2 (Proprietary) Limited, Security SPV 3 (Pty) Ltd, Security SPV 4 (Proprietary) Limited, Secured Mortgages One (Pty) Ltd, South African Securitisation Programme (RF) (Proprietary) Limited,, Tarl Investment Holdings Limited, The Oppenheimer Trust (Proprietary) Limited, Theseus Trustees (South Africa) (Proprietary) Limited, Trackhedge (Proprietary) Limited, Trackhedge Managers (Pty) Ltd, Usat Trust Limited, Vukile Investment Property Securitisation (Pty) Ltd Edwin Marcus Letty age: 71; nationality: South African; qualifications: Admitted Attorney, Notary and Conveyancer; business address: 32 Fricker Road, Illovo Boulevard, Johannesburg, 2196; occupation and experience: Attorney, notary and conveyancer, CEO and director of various companies; directorships / partnerships in the five years preceding the date of these Listing Particulars: Amber House Fund 2 Security SPV (RF) Proprietary Limited, (, Blue Granite Investments No. 5 Security SPV (Proprietary) Limited, Brandmark (Proprietary) Limited, Collateralised Auto Receivables Securitisation 1 Guarantor, Eagle Newco Number One, Eagle Security co Number 18

19 One, Fedtrust, Fedprop, Fedgroup Life Limited,Fedbond Nominees, Fedbond Participation Mortgage Bond Managers, Grayston Conduit 1 Security SPV 1 (PTY) LTD,, Grayston Conduit 1 Security SPV 4 (PTY) LTD, Grayston Conduit 1 Security SPV 5 (PTY) LTD, La Maison Vinasse, La Vinasse Vineyards, NBC Future Guard Proprietary Limited,Newgold Issuers (Proprietary) Limited, Newgold Managers (Proprietary) Limited, Private Commercial Mortgages Security SPV Series 1 Proprietary Limited,, Private Commercial Mortgages Security SPV Series 2 Proprietary Limited, Private Mortgages 1 SPV Proprietary Limited, Private Mortgages 2 SPV Proprietary Limited, Private Mortgages 3 SPV Proprietary Limited, Rich Rewards Trading 669 Proprietary Limited,Renewable Energy Debt Finance Proprietary Limited, Sanlam Home Loans 101 Security SPV (Proprietary) Limited, Sanlam Home Loans 102 Security SPV (Proprietary) Limited, Sanlam Home Loans 102 (Proprietary) Limited, Sanlam Home Loans 103 (Proprietary) Limited, Sanlam Home Loans 103 Security SPV (Proprietary) Limited Tennant Benefit Consultants (Proprietary) Limited, The Thekwini Fund 6 Security SPV (Pty) Ltd, The Thekwini Fund 7 Security SPV (Pty) Ltd, The Thekwini Fund 8 Security SPV (Pty) Ltd, The Thekwini Fund Private Placements Security SPV (Pty) Ltd, The Thekwini Warehousing Conduit (Pty) Ltd, The Thekwini Warehousing Conduit SPV (Pty) Ltd, The South African Home Loans Hedge Company Proprietary Limited, Tiddlers Proprietary Limited, Trackhedge Managers (Proprietary) Limited, Trackhedge (Proprietary), Vukile Investment Proprietary Securitisation Proprietary Limited Timothy John Fearnhead age: 65; nationality: South African; qualifications: CA(SA); Diploma in Adv. Banking business address: 13 Argyle Avenue, Craighall occupation and experience: Independent Consultant; directorships/partnerships in the five years preceding the date of these Listing Particulars: NewGold Issuer Limited (RF), The South African Bank of Athens, Alexander Forbes Preference Share Investments Limited, Fintech Receivables 2 (Pty) Limited, FirstRand Insurance Services Company Limited, Onthecards Investments II (Pty) Ltd, Hentig 3287 (Pty) Limited, Commissioner Street No1 (Pty) Ltd, Commissioner Street No3 (RF) (Pty) Ltd, Commissioner Street No4 (RF) (Pty) Ltd, Constantia Insurance Company Limited, Constantia Life and Health Assurance Company Limited, Constantia Insurance Holdings (Pty) Ltd,Newgold Issuer Limited, Trackhedge Proprietary Limited, Truck and General Insurance Company Limited, Constantia Life Limited, AGRE Insurance Company Limited, Bleau Enterprises (Pty) Ltd, Campaign Investments (Pty) Ltd, Vumela Advisory Fund NPC (RF), Accelerate Property Fund Limited Vladimir Nedeljkovic age: 50; nationality: South African; qualifications: B.Sc (Hons), M.Sc, PhD, MBA business address: 15 Alice Lane, Sandton occupation and experience: Principal, Head :Investments The directors of NewGold are appointed for a term of 3 years and they retire by rotation as per the terms of the memorandum of incorporation. Each of the directors of NewGold will accordingly hold office until the end of the term and eligible for re-election. None of the directors of NewGold will, in his capacity as such, be remunerated by NewGold. 19

20 None of the directors of NewGold has been involved in or has been subject to any: bankruptcies, insolvencies or individual voluntary compromise arrangements; receiverships, compulsory liquidations, creditors voluntary liquidations, administrations, company voluntary arrangements, or any compromise or arrangement with creditors generally or any class of creditors of any company where the director is or was a director with an executive function at the time of or within twelve months preceding such events; compulsory liquidations, administrations, or partnership voluntary arrangements of any partnerships where the director was a partner at the time of or within twelve months preceding such events; receiverships or any asset/s of such person or of a partnership of which the individual is or was a partner at the time of or within the twelve months preceding such event; public criticism by statutory or regulatory authorities or disqualified by a court from acting as a director or in the management or conduct of the affairs of any company; or offence involving dishonesty. NewGold has no employees (and is not in terms of its memorandum of incorporation permitted to have any employees) and, accordingly, in order to ensure the efficient running and management of NewGold s Business, NewGold concluded the Management Agreement. 4. Gold Bullion Debentures The Gold Bullion Debentures are issued by NewGold in the form of debentures as contemplated in the South African Companies Act. The Gold Bullion Debentures constitute senior, unsecured obligations of NewGold and are issued in denominations linked to the value of the Reference Quantity in accordance with the Debenture Conditions. The creation and redemption feature of the Gold Bullion Debentures enables new Gold Bullion Debentures to be created and for existing Gold Bullion Debentures listed on the JSE to be redeemed subject to compliance with the Conditions to Redemption. A Gold Bullion Debenture may only be issued if the Conditions to Issue have been fulfilled. The Gold Bullion Debentures do not bear interest and rank pari passu amongst each other. A Gold Bullion Debenture only evidences the financial indebtedness of NewGold to the relevant Debenture Holder (the amount of which is dependant on the value at any point in time of the Reference Quantity of Gold Bullion to which such Gold Bullion Debenture is linked) and does not grant or constitute any ownership, right or beneficial or other interest in or to any Gold Bullion. A Debenture Holder, accordingly, does not have or acquire any ownership, right or beneficial or other interest in or to any Gold Bullion held by NewGold from time to time. The Gold Bullion Debentures are listed in the Exchange Traded Funds sector of the JSE list (as a primary listing) under the abbreviated name NewGold, symbol GLD and ISIN Code ZAE The Gold Bullion Debentures are issued in Dematerialised form and all trades and transactions are made through the Strate System in accordance with the Applicable Procedures. The Gold Bullion Debentures are also listed on the ETF sector of the main board of the Botswana Stock Exchange. The SEM has granted a Secondary Listing for the Gold Bullion Debentures in the ETF sector of the Official Market of the SEM under the abbreviated name NewGold, symbol NGLD.N0001 and ISIN Code ZAE The Gold Bullion Debentures will be issued in Dematerialised form. Further Gold Bullion Debentures may obtain a secondary listing on other exchanges, as determined by the directors. NewGold is entitled to require the redemption of the Gold Bullion Debentures if any of the Transaction Documents become illegal or unenforceable and such illegality or unenforceability cannot be remedied through reasonable measures, or if, as a result of any change to or amendment of the application or 20

21 interpretation of any existing or future law, NewGold is required to make any withholdings or any deduction from payments to be made under the Gold Bullion Debentures and such requirement cannot be avoided through reasonable measures available to NewGold. In either such eventuality, NewGold is required to give the Debenture Holders not less than thirty days and not more than ninety days notice of such redemption. NewGold is also entitled to redeem Gold Bullion Debentures held by a specific Debenture Holder in the event that NewGold is reasonably of the view that the investment by such Debenture Holder in the Gold Bullion Debentures may result in NewGold falling foul of the provisions of the South African Financial Intelligence Centre Act, 38 of 2001, or any other Applicable Law. In the event of redemption, the Gold Bullion Debentures will be redeemed at their Redemption Value as at the Redemption Date thereof in accordance with the Priority of Payments. The Redemption Value is calculated having regard to the Sale Proceeds realised through the sale of the Reference Quantity of Gold Bullion in the London PM Fix on the relevant Redemption Date thereof. Any premium or discount to the price in the London PM Fix obtained or incurred by NewGold will be passed on to the relevant Debenture Holder. This Reference Quantity will be less than the Initial Quantity as it will take into account the Monthly Gold Sales Charge. NewGold sells Gold Bullion at the end of each month in an amount equal to the Monthly Gold Sales Charge and uses the proceeds of such sale to pay its fees and expenses and to declare and pay dividends to its shareholders. No dividends are paid to holders of Gold Bullion Debentures. The Monthly Gold Sales Charge accrues daily on all Gold Bullion held by NewGold from time to time in excess of 430 fine troy ounces, is deducted monthly in arrears and is currently set at 0.40% per annum (including VAT). The Monthly Gold Sales Charge will be used to pay, inter alia, fees to the Custodian and the Manager and to pay dividends to the NewGold shareholders, which dividends will be equal to the remainder of the Monthly Gold Sales Charge after all fees and expenses (as described in subsection14 of Section 4 hereof) have been deducted. Accordingly, the Reference Quantity reduces each day as the Monthly Gold Sales Charge accrues. Both the Monthly Gold Sales Charge and the Reference Quantity of each Gold Bullion Debenture as at the end of each month will be published and released by NewGold on NewGold s website. Should the fees and expenses of NewGold be higher than anticipated, the Monthly Gold Sales Charge may be varied by NewGold at any time on ninety days prior notice through SENS and with simultaneous notifications to the SEM, provided that should NewGold be or become obliged to pay any amount in respect of Taxation on short notice, only thirty days prior written notice of the variation of the Monthly Gold Sales Charge shall be required. Subject to what is set out above, all amounts payable by NewGold in respect of the Gold Bullion Debentures listed on the SEM will be paid by NewGold in Rupee in cash in accordance with the Priority of Payments. All such payments in respect of the Gold Bullion Debentures will further be made without withholding or deduction for or on account of any present of future Taxation, unless such withholding or deduction is required by Applicable Law. If so required, NewGold will make such payments after such withholding or deduction has been made (where applicable) and NewGold will not be obliged to make any additional payments to Debenture Holder in respect of such withholding or deduction. 5. Creation and Redemption Fees NewGold does not charge fees on creation or fees on redemption to investors who buy and sell the Gold Bullion Debentures on the secondary market, including the JSE and SEM. Such fees are only payable on the creation and redemption of Gold Bullion Debentures directly with NewGold on the primary market. Given that the creation and redemption of Gold Bullion Debentures are only available in respect of Gold Bullion Debentures listed on the JSE (subject to the Conditions to Issue or the Conditions to Redemption, as the case may be) and Debenture Holders holding their Gold Bullion Debentures on the SEM will only be able to trade on the secondary market, these fees will in normal circumstances not apply to SEM investors. If NewGold exercises its rights to require the redemption of some or all of the Gold Bullion Debentures in accordance with the Debenture Conditions, it will charge each Debenture Holder a Redemption Fee equal to 0.15% of the Redemption Value (excluding VAT). NewGold may vary the redemption fees payable at any time by giving one month s prior notice through SENS and with simultaneous notification to the SEM. 21